Marriage and the Reign of Judges

The latest decision from our judicial overlords on same-sex marriage spells trouble for republican constitutionalism and the institution of marriage.

The Defense of Marriage Act (DOMA) was grounded on a fear of judges run amok. This past Thursday, federal district court judge Joseph Tauro of Boston justified this fear when he struck down section 3 of the act in two separate cases, Gill v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services (HHS). In the Gill case, Judge Tauro held that the law unjustly denied various federal benefits to spouses in same-sex marriages contracted under Massachusetts law, contrary to the equal protection principle. Meanwhile, in the HHS case, Tauro ruled that the state itself was the victim of an unconstitutional intrusion by the federal government on its reserved powers under the Tenth Amendment. In both cases the judge claimed to be basing his ruling on the “historically entrenched practice” of federal law recognizing marital status whenever it was accorded under state law. But we can hardly credit his attachment to “historically entrenched practice” when he is willing to treat the whole moral tradition of human civilization, with its exclusive recognition of marriage as a union of opposite sexes, as “irrational” and thus fit for the dustbin.

DOMA cannot be properly understood outside its historic context. Congress passed DOMA, a statute that is as simple as it is brief (consisting of barely more than 350 words), to prevent this judicial tyranny. DOMA did just two things: in section 2 it permitted states to deny recognition to any “relationship between persons of the same sex that is treated as a marriage under the laws” of another state; and in section 3 it defined “marriage” for purposes of all federal laws and regulations to be “only a legal union between one man and one woman as husband and wife.”

Neither section took any notice of which state institutions might be responsible for introducing the recognition of same-sex marriage. But the law as a whole was a response to the looming threat, by then already met and rebuffed in Hawaii, of judges imposing the agenda of same-sex marriage on the country, state by state. Indeed, in the event that democratic action caused same-sex marriage to become widely accepted, and recognized in the law in most of the states, one might expect DOMA to be repealed in its entirety. But that would be for Congress to do, following the actions of other elected legislatures at the state level. And in 1996, when DOMA was passed, no state legislature had seen fit to upend the entire meaning and history of marriage by fabricating the fraud of permitting persons of the same sex to “marry.” In the fourteen years since DOMA’s passage, only one legislature (New Hampshire’s) has acted to authorize such marriages entirely on its own, while another (Vermont’s) did so only after being pushed as far as same-sex ‘civil unions’ by its state’s judiciary. And in every state in which the question of permitting same-sex marriage has been put directly before the people, it has been rejected by popular majorities, in most cases acting in their sovereign capacity as constitutional lawgivers. The sine qua non of same-sex marriage in the United States has been the tyranny of the American judiciary, while republican constitutionalism has been fighting a rearguard action.

One of Judge Tauro’s defenders might say that since it has already been decided that same-sex marriages may take place in Massachusetts, the only question before Tauro’s court was whether the federal government could decline to treat same-sex couples as married when the state has so treated them. “The authority of the Commonwealth,” after all, has “recognized same-sex marriages among its residents,” he noted. But what “authority” worked this recognition in Massachusetts? Why, its judiciary, of course, which has infamously frustrated the operations of democracy at every turn.

Thus it takes a certain cool nerve for Judge Tauro to argue that DOMA broke with a tradition of federal restraint from meddling in “states’ areas of sovereign concern,” and to say as well that “DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations,” when DOMA predated the Massachusetts judiciary’s invention of a right to same-sex marriage by seven years. Who was it who set the collision course? Not the bipartisan national coalition that enacted DOMA as a purely defensive measure, and not the sovereign peoples of the states or their elected representatives who are responsible to them for the shape of their constitutional orders, and who have acted to preserve authentic marriage in the law. No, it has been the judicial ideologues who have determined to attack the defensive bulwarks of sovereign power, and to play at being sovereigns themselves.

It is worth noting, as Ed Whelan has done, that the Obama administration (guided by Solicitor General Elena Kagan, now nominated to the Supreme Court) explicitly abandoned the argument that marriage is tied to procreation and that Congress might thus decline to recognize state-sanctioned same-sex marriages. But had the argument been preserved, there is no reason to believe it would have prevailed in Judge Tauro’s court. He was plainly intent on building the next story of the same-sex marriage edifice on the foundation built by the usurper jurists who have come before him. And like his predecessors, he has found it necessary to beg important questions and to hold others’ views “irrational” without any real ratiocination of his own.

Quoting Supreme Court precedent, for instance, he allowed that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law. . . .” The ellipsis is his, but it conveniently conceals that even the Justice who originally said this (John Paul Stevens) knew that the traditional view of morality espoused by democratic majorities does prevail, unless a countervailing constitutional ground for overturning it is produced by the law’s challengers. Judge Tauro provided no such ground, but was content to leave the impression that “legislating morality” is not, in itself, possible in a constitutional democracy. This he himself contradicted, holding that Congress is bound by “historically entrenched practices”—that is, traditions of its own making that he invested with moral significance—and also expressing high moral dudgeon about the putative motivations of the legislators who crafted DOMA, presuming to instruct the Congress in precepts of constitutional morality. It is only judges, it seems, who may use the law for purposes of legislating morality.

Judge Tauro is certain, for instance, that DOMA somehow “targets” persons of a certain “sexual orientation” as members of a “group of which [Congress] disapproves”—indeed, has an “animus” against—and which it therefore wants to “disadvantage” in the law. But this is not what DOMA is about at all. Instead it is the mildest of all possible measures that Congress could have taken to defend marriage as human civilization has always known it. It attempts to cabin a judicial revolution in those states in which it occurs, and to head off the sorts of claims that would spread the revolution, such as same-sex couples moving from one state to another and saying that, after all, in their former domicile they had jointly filed their federal income taxes as married.

There is no “animus” in such legislation. But Judge Tauro sees nothing else, because he has already concluded that the difference between same-sex couples and opposite-sex couples is “a distinction without meaning.” Of that moral conclusion the judge is quite sure, but there is no telling what is the ground of his certainty. All we know is that “traditional morality” cannot stand against it. Perhaps it is novelty alone that suffices for the victory of one moral view over another. But who made our judges the pioneers of society’s moral “advancement”? And if, thanks to some other judicial pioneers, polygamy comes to be legalized in one of the states, would it be permissible for Congress to legislate that only monogamous marriages were recognized under federal law? Or would that too be “a distinction without meaning”? Time may tell that tale as well.

Judge Tauro’s rulings were restricted to section 3 of DOMA, concerning the status of same-sex couples under federal law and policy in states permitting them to marry. But his logic would hold section 2 on interstate recognition unconstitutional as well, notwithstanding his repeated view that states may determine the right to marry in different ways. Holding that no rational distinction can be made between same-sex married couples and opposite-sex married couples, the judge “finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.” True, he predicates this holding on the fact that, under Massachusetts law, there already are same-sex married couples. But it is a short step from such reasoning to the conclusion that, if one such Massachusetts couple moves to West Virginia, their new domiciliary state cannot rationally deny them a recognized status that their former state already accorded.

“Married in Massachusetts, married everywhere” is the conclusion Judge Tauro invites. And it is but one more step beyond that to “marriageable in Massachusetts, marriageable everywhere,” with the equal protection clause becoming the source of a federal constitutional right of same-sex couples to marry. This is the outcome almost certain to come from the federal trial of Perry v. Schwarzenegger in California, where the sovereign act of Proposition 8 hangs in the balance and a decision is expected any day from Judge Vaughn Walker. But Judge Tauro, in his smaller way, has signaled his own eager enlistment in the revolutionary vanguard of the American judiciary, ready to instruct the little people, who used to be the self-governing citizens of the United States, in the moral categories commanded by progress.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.An earlier version of this article misstated the number of states in which same-sex marriage has been adopted by legislative action.